Wiggins v Rigby
[2000] VSC 309
•10 August 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 4400 of 1999
| RENARD WIGGINS AND ANOTHER | Plaintiffs |
| v. | |
| DARREN RIGBY AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 JUNE 2000 | |
DATE OF JUDGMENT: | 10 AUGUST 2000 | |
CASE MAY BE CITED AS: | WIGGINS & ANOR. v. RIGBY & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 309 | |
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CATCHWORDS: Defamation – Statements amounting to defamation – Imputation – Company alleging defamation – Imputation concerning sole director of company.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr. W. Houghton Q.C. and Mr. T. McLean | Corrs Chambers Westgarth |
| For the Defendants | Mr. M. Wheelahan | Bernard Carr |
HIS HONOUR:
This is an appeal from the order of a Master of the Court made on 30 May 2000 whereby the Master ordered that paragraphs 5, 10, 13, 18 and 18C of the plaintiffs' second further amended statement of claim (the statement of claim) be struck out.
The action is one in which the plaintiffs are claiming damages from the defendants for defamation.
The first plaintiff Renard Wiggins is the sole director of the second plaintiff Tritech Technology Pty. Ltd. (Tritech). It is said that Wiggins is the alter ego of Tritech.
I propose to deal first with paragraph 5 of the statement of claim.
Paragraph 3 of the statement of claim reads:
"On a date in November 1998 which the Plaintiffs cannot presently identify the First Defendant published of and concerning the Plaintiffs the following words:
(a) 'Renard was in Western Australia spending Tritech's money';
(b)'Renard was in Western Australia having a good time while I was in Melbourne working';
(c)'Renard has taken $70,000 which belongs to Tritech an spent it on himself';
(d)'Tritech's business was being neglected because Renard did very little and had me run around doing work for Tritech which Renard should have performed';
(e) 'Renard speaks a lot of bullshit about Tritech'; and
(f) 'I am sick of running around for Renard'
('the first words')."
Paragraph 4 then alleges that the words referred to in paragraph 3 in their natural and ordinary meaning were defamatory of the first plaintiff and sets out what the plaintiffs contend the words mean and were meant to mean.
Paragraph 5 of the statement of claim then reads:
"Further, the first words in their natural and ordinary meaning were defamatory of the Second Plaintiff in its trade or business and meant and were understood to mean that:
(a)the Second Plaintiff did not conduct its affairs or operations in an honest and/or business-like manner;
(b)the Second Plaintiff had no checks or controls in place to monitor or prevent the improper or detrimental expenditure of its funds;
(c)the Second Plaintiff conducted its business operations in a manner detrimental to its members; and
(d) the Second Plaintiff was not fit to transact business with others."
The submission of counsel for the defendants is that none of the words in paragraph 3 of the statement of claim are capable of being defamatory of the second plaintiff and that none of the imputations pleaded by the second plaintiff are open to it.
The case for the plaintiffs in opposition to the application by the defendants is that the second plaintiff is a trading company and a trading company may be defamed by words which injure its reputation in the way of its trade or business.
The words in question are capable of identifying the second plaintiff by reason of the fact that in them express reference is made to the second plaintiff either by its name "Tritech" or by the words "the company".
As the first plaintiff is the sole director of and is actively engaged on a daily basis in the business of the second plaintiff, any statements made about the first plaintiff in relation to the business affairs of the second plaintiff are capable of defaming both plaintiffs.
As to the argument that none of the imputations pleaded by the second plaintiff are open to it, it will be for the trial Judge to determine whether the imputations relied upon by the second plaintiff are capable of being conveyed to the ordinary reasonable person of fair average intelligence, by the words. And in that regard it is to be remembered that the trial Judge will be not limited to the imputations pleaded by the second plaintiff. It will be his or her task to determine whether the words are not capable of conveying any meaning defamatory of the second plaintiff. In that regard see Barclay v. Cox [1968] V.R. 664 and Roux and Others v. Australian Broadcasting Commission (1992) 2 V.R. 577.
In dealing with this appeal it is to be remembered that there is a heavy onus upon a defendant who seeks to strike out paragraphs in a plaintiff's statement of claim. Before such an application will succeed he must satisfy the Court that the claim in question is manifestly groundless or that on no view could it succeed. See General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125, Bick v. Mirror Newspapers Ltd. (1979) 2 N.S.W.L.R. 679 and Roux (supra).
There is no doubt that a trading company can maintain an action of libel or slander for any words which are calculated to injure its reputation in the way of its trade or business. See Gatley on Libel and Slander Ninth Edition at p.181 et seq.
In Derbyshire County Council v. Times Newspapers [1993] A.C. 534 Lord Keith of Kinkel said at p.547:
"The authorities … clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it." (The emphasis is mine.)
It is also the case that an imputation concerning a director or officers of a company can reflect upon the company itself depending on the part that the director or officer is alleged to have played in the operations of the company and upon the extent to which the one is identified with or is considered to be the alter ego of the other.
In Bargold Pty. Ltd. v. Mirror Newspapers Ltd. and Anor. (1981) 1 N.S.W.L.R. 9 the plaintiff sued the defendant in relation to an article which appeared in a newspaper published by the defendant. The article contained disparaging statements concerning a director of the plaintiff which it was contended by the plaintiff reflected upon the company itself.
In considering whether the matters complained of were defamatory of the company and whether they bore the imputations pleaded in the plaintiff's statement of claim, Hunt, J. said at p.10:
"The article identifies the plaintiff company as being the 'latest venture' of Mr. Alexander Barton who, it is said, runs the company with his son, Thomas Barton. A great deal of attention is paid by the article to Mr. Alexander Barton personally. It is argued by the defendants that matter disparaging of Mr. Barton is irrelevant to the question of what is disparaging of the plaintiff company. I accept that, where such matter reflects solely upon a director or an officer of a company, the company itself cannot complain of its publication, but the emphasis must be placed upon the word 'solely': Bognor Regis Urban District Council v. Campion [1972] 2 QB 169, at p.175. However, an imputation concerning such a director or officer may in many cases reflect also upon the company itself; whether it may or does must depend upon the part that director or officer is alleged to have played in the operations of the company and upon the extent to which the one is identified with or considered to be the alter ego of the other. The principle is discussed by Spencer Bower (in his characteristically robust fashion) in Actionable Defamation, 2nd ed. at pp.244, 245; see also proposition (e) at pp.15 16.
In the present case, I am satisfied that the article is capable of being interpreted as identifying the plaintiff sufficiently with Mr. Barton as to make matter capable of being defamatory of him capable of being defamatory also of it."
I respectfully agree with his Honour's observations.
In view of the fact that in the present case the first plaintiff is the alter ego of the second plaintiff I think that it is arguable that the words complained of in paragraph 3 of the statement of claim are capable of bearing the imputations alleged in paragraph 5 of the statement of claim because they may make people reluctant to deal with the second plaintiff.
It is arguable that it would be open to a person who heard the words complained of to form the opinion for example:
1.that the second plaintiff's financial affairs were not properly managed and conducted.
2.that the second plaintiff did not have in place an appropriate and efficient accounting system;
3. that there could be problems concerning the solvency of the second plaintiff;
4. that the second plaintiff's business was being neglected; or
5.that the business of the second plaintiff was not as sound or well conducted as people had been led to believe.
At the very least I do not consider it can be said that the second plaintiff's case in respect of the words complained of is manifestly groundless or that on no view could it succeed.
Clearly in a case of this nature the evidence the second plaintiff calls at trial will have a great bearing on the matter.
I consider that it is unnecessary to set out paragraphs 10, 13, 18 and 18C of the statement of claim in my reasons for judgment.
Having considered those paragraphs and what I may describe as the supporting paragraphs, in my opinion similar observations may be made in respect of them to those I have made in respect of paragraph 5.
The appeal from the orders of the Master made on 30 May 2000 is allowed. Paragraphs 1, 2 and 5 of the order are set aside.
I order that the defendants pay the plaintiff's costs of the application before the Master on 30 May and the costs of the appeal.
Pursuant to the provisions of the Appeal Costs Act I grant to the defendants an appropriate certificate in respect of their costs of the appeal and the costs of the appeal they are required to pay to the plaintiffs.
I extend the time within which the defendants are to deliver their amended defence to the second further amended statement of claim of the plaintiffs to 18 August 2000.
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